Article Beyond the Paris Agreement: Intellectual Property, Innovation Policy, and Climate Justice Matthew Rimmer Professor of Intellectual Property and Innovation, Faculty of Law, Queensland University of Technology, 2 George St, Brisbane City QLD 4000, Australia; [email protected] Received: 11 December 2018; Accepted: 6 February 2019; Published: 18 February 2019 Abstract: The multidisciplinary field of climate law and justice needs to address the topic of intellectual property, climate finance, and technology transfer to ensure effective global action on climate change. The United Nations Framework Convention on Climate Change 1992 (UNFCCC) established a foundation for the development, application and diffusion of low-carbon technologies. Against this background, it is useful to analyse how the Paris Agreement 2015 deals with the subject of intellectual property, technology transfer, and climate change. While there was discussion of a number of options for intellectual property and climate change, the final Paris Agreement 2015 contains no text on intellectual property. There is text, though, on technology transfer. The Paris Agreement 2015 relies upon technology networks and alliances in order to promote the diffusion and dissemination of green technologies. In order to achieve technology transfer, there has been an effort to rely on a number of formal technology networks, alliances, and public–private partnerships— including the UNFCCC Climate Technology Centre and Network (CTCN); the World Intellectual Property Organization’s WIPO GREEN; Mission Innovation; the Breakthrough Energy Coalition; and the International Solar Alliance. There have been grand hopes and ambitions in respect of these collaborative and co-operative ventures. However, there have also been significant challenges in terms of funding, support, and operation. In a case of innovation policy pluralism, there also seems to be a significant level of overlap and duplication between the diverse international initiatives. There have been concerns about whether such technology networks are effective, efficient, adaptable, and accountable. There is a need to better align intellectual property, innovation policy, and technology transfer in order to achieve access to clean energy and climate justice under the framework of the Paris Agreement 2015. At a conceptual level, philosophical discussions about climate justice should be grounded in pragmatic considerations about intellectual property and technology transfer. An intellectual property mechanism is necessary to provide for research, development, and deployment of clean technologies. There is a need to ensure that the technology mechanism of the Paris Agreement 2015 can enable the research, development, and diffusion of clean technologies at a scale to address the global challenges of climate change. Keywords: intellectual property; technology transfer; innovation law; innovation policy; climate law; climate justice; climate finance 1. Introduction There has been a longstanding debate in international climate talks about public policy settings in respect of intellectual property, technology transfer, and climate change. As Shabalala (2016) has observed, ‘The development and diffusion of technologies is a fundamental and necessary element to ensuring that standards of living are maintained and poverty continues to be reduced as global warming is mitigated and weather impacts are minimised’. Indeed, there was significant discussion about intellectual property and environmentally sound technologies in the initial negotiations, which led to the formation of the United Nations Framework Laws 2019, 8, 7; doi:10.3390/laws8010007 www.mdpi.com/journal/laws Laws 2019, 8, 7 2 of 24 Convention on Climate Change 1992 (UNFCCC).1 In recent times, the topic was debated as part of the negotiations of the Copenhagen Accord 2009, the Cancún Agreements 2010, the Durban Decisions 2011, the Doha Climate Gateway 2012, the Warsaw Opportunity 2013, and the Lima Call for Climate Action 2014.2 The topic of intellectual property and climate change was debated in the Paris climate negotiations— but the final Paris Agreement 2015 only addresses the topic of technology transfer. While there has been some limited agreement in relation to technology transfer, there has also been an impasse in respect of intellectual property. Intellectual property plays a significant role in the debate over the regulation of the environment, biodiversity, and climate change. Patent law provides exclusive rights in respect of scientific inventions—including in the fields of climate adaptation technology and climate mitigation technology (Lane 2011; Sarnoff 2016c). There have been significant patent disputes over clean technologies—such as climate-ready crops (Rimmer 2012),3 hybrid vehicles,4 and a range of other subject matters. There have also been complex issues relating to management of patent rights in terms of ownership and licensing (Wishart 2018). Moreover, there has a discussion about the application of patent flexibilities to clean technologies—including public sector licensing, patent pools, compulsory licensing, technology transfer, and parallel importation. Under designs law, there has also been conflict over green technologies—such as electric vehicles (Sainsbury 2018). 5 Trade mark law offers recognition for eco-labels under certification trademarks (Chon 2009, 2014, 2018; Chon et al. 2018). Consumer law provides remedies in respect of misleading and deceptive conduct—such as greenwashing. Notably, competition and consumer regulators have taken action over the controversy of Volkswagen’s ‘Dieselgate’ (Pearse 2012; Ewing 2017; Australian Competition and Consumer Commission 2016).6 Increasingly, trade secrets have played a role in green technologies (Sandeen and Levine 2016; Sumanadasa 2018). The United States Government has taken action over the appropriation of trade secrets by Chinese entities from flagship renewable energy companies, such as SolarWorld and the American Superconductor Corporation.7 Copyright law and database protection also play a role in the regulation of access to environmental information and data (Derclaye 2014; Cunningham 2014; Cunningham, 2018; Hyland-Wood 2018). There are also significant connections between intellectual property, plant breeders’ rights, access to genetic resources, and Indigenous knowledge (McManis 1 United Nations Framework Convention on Climate Change 1992, Opened for signature 9 May 1992, 1771 UNTS 107 (entered into force 21 March 1994). 2 Copenhagen Accord 2009, UN Doc. FCCC/KP/CMP/2009/L.9 (18 December 2009); Cancún Agreements 2010, Outcome of the Work of the Ad Hoc Working Group on Long-Term Cooperative Action Under the Convention, CP.16, http://unfccc.int/files/meetings/cop_16/application/pdf/cop16_lca.pdf and Outcome of the Work of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol at its Fifteenth Session, - /CMP.6 http://unfccc.int/files/meetings/cop_16/application/pdf/cop16_kp.pdf; Durban Decisions 2011, CP.17, http://unfccc.int/meetings/durban_nov_2011/meeting/6245/php/view/decisions.php; Doha Climate Gateway 2012, COP. 18/CM 18, https://unfccc.int/key_steps/doha_climate_gateway/items/7389.php Warsaw Opportunity 2013, CP. 19, http://unfccc.int/meetings/warsaw_nov_2013/meeting/7649.php and Lima Call for Climate Action 2014, CP. 20, http://unfccc.int/meetings/lima_dec_2014/meeting/8141/php/view/decisions.php 3 In Monsanto v The Controller of Patents & Designs, Trademark and Geographical Indications (2013), OA/02/2012/PT/DEL, India’s Intellectual Property Appellate Board dismissed an appeal by Monsanto over the Patent Office’s rejection of a patent application for a transgenic plant with increased stress tolerance. 4 Toyota Motor Corporation v. Paice LLC 128 S. Ct 2430 (Mem) U.S. (2008). 5 Nikola Corporation v. Tesla Inc., United States District Court for the District of Arizona (2018), Case 2:18-cv- 01344-GMS. 6 There are a number of Australian class actions over ‘Dieselgate’ – including Cantor v Audi Australia Pty Ltd NSD1307/2015; Dalton & Anor v Volkswagen AG & Anor, Federal Court of Australia, NSD1459/2015; Richardson v Audi AG and Audi Australia Pty Ltd NSD1472/2015; Roe v Skoda Auto a.s, Volkswagen AG and Volkswagen Group Australia Pty Ltd NSD1473/2015; and Tolentino v Volkswagen Group Australia Pty Ltd, Federal Court of Australia, NSD1308/2015. 7 U.S. v Wang Dong et al. (W. D. Pa, 1 May 2014); and U.S. v. Sinovel Wind Group Co Ltd, et al (2018), U.S. District Court, Western District of Wisconsin, No. 13-cr-00084. Laws 2019, 8, 7 3 of 24 and Ong 2018; Adhikari and Lawson 2018; Savaresi 2018). Intellectual property litigation may well be an important new form of climate litigation (Congressional Research Service 2017). This article is part of a growing literature on intellectual property, technology transfer, and climate change (Rimmer 2011). There have been a number of significant contributions in this still- emerging field. Lane (2011) considered intellectual property management and litigation in respect of green technologies. Brown (2013) explored the topic of intellectual property and environmental technologies. Menell and Tran (2014) edited a compilation of influential works in the field of intellectual property, innovation, and the environment. Sarnoff (2016b) also edited a research collection on the debate over intellectual property, clean technologies, and climate change. Zhuang (2017) examined intellectual property, international